Gujarat High Court
State Of Gujarat vs Nagaji Kuber Thakore on 5 July, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/132/1999 JUDGMENT DATED: 05/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 132 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI DESAI
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Approved for Reporting Yes No
√
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STATE OF GUJARAT
Versus
NAGAJI KUBER THAKORE & ORS.
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Appearance:
MR KRUTIK PARIKH ADDITIONAL PUBLIC PROSECUTOR for the
Appellant(s) No. 1
LEAVE TO APPEAL REFUSED for the Opponent(s)/Respondent(s) No. 7
MR TUSHAR CHAUDHARY(5316) for the Opponent(s)/Respondent(s) No.
2,3,4,5,6
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
and
HONOURABLE MR.JUSTICE UTKARSH THAKORBHAI
DESAI
Date : 05/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. The challenge is given to the judgment and order of
acquittal passed by the learned Additional Sessions Judge,
Banaskantha at Palanpur in Sessions Case No.127 of 1997
dated 04.12.1998 under Section 378(1)(3) of the Code of
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Criminal Procedure, 1973 (hereinafter referred to as 'CrPC'
for short).
2. Learned APP Mr. Krutik Parikh, has referred to the charge
framed by the trial Court at Exh.3, to state about the case
against seven of the accused. Learned APP has also referred to
the evidence of P.W.6 and P.W.8, who according to the learned
APP, though being eye witnesses have not been believed, which
is a gross error by the trial Court.
2.1 Learned APP stated that the learned Judge has committed
error in creating unnecessary doubts in depositions of the
prosecution eye witnesses and has given undue importance to
other evidence, which would not have any relevance. Learned
APP submitted that the prosecution witnesses' depositions have
similarity and the learned Judge has failed to appreciate that the
witness - Versibhai Dhanabhai was staying at his field during
night hours and therefore, he would be well aware of state of
affairs of the fields of neighbours. Learned APP submitted that
the learned trial Court Judge was required to believe P.W.6 -
Versinh Dhana, aged about 55 years, who had seen weapons at
the hands of the accused persons in the light of the battery and
who had also given the detail information regarding the incident.
He submitted that the learned Judge has committed error in
disbelieving the eye witnesses by holding them as false and the
evidence as fabricated.
2.2 Mr. Parikh, learned APP has referred to the depositions of
the eye witnesses and the map of place of offence, to submit that
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Anirudh Girdharlal Trivedi (P.W.3), who had been made as
panch in two of the panchnamas at Exh.25 and who has proved
the panchnama, was required to be believed and witness
Shambhubhai was also not believed since being a relative of the
complainant.
3. After hearing learned APP, we have perused the judgment
of the learned trial Court Judge. The allegation against the
accused is to the effect that on 20.05.1997 at about 9 O' clock at
night, in the field of Nagji Kuber Thakor, near a room i.e. a farm
house, all the accused owing to their old enmity had formed
unlawful assembly and in furtherance to their common intention
had murdered Keshabhai Amrutlal Barot, and that the accused
were wielded with weapons like scythe, stick and baton and with
those weapons had assaulted Keshabhai Amrutlal and caused
injuries on the head and other parts of the body, which led to his
death. The accused were tried under Sections 302, 147, 148 and
149 of the IPC. Further, the charge was also framed for breach of
Section 135 of the the Bombay Police Act, in connection with the
notification for the prohibition of weapons.
3.1 The complaint was given by Jayantilal Amrutlal Barot,
who was at the relevant time, Judicial Magistrate at Dhanduka,
and according to his complaint, they are four brothers and eight
sisters and he had come there at his village for the marriage of
his sister Naina. His house is at Sanadar. When after having his
dinner and when they all were sitting, at that time, Desai
Versinhbhai Dhanabhai (P.W.6) and his son Dharamsinhbhai
(P.W.8) came running to their house and informed them that
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their brother Keshabhai was beaten by Thakor Nagjibhai Kuber
of their village near the room of their farm and when he was
shouting to save him, he and his son rushed there, at that time,
they saw stick in the hands of Nagji Kuber, scythe in the hands
of Swaroop Nagji Thakor and Lebuji Nagji, scissor in the hands
of Bhupat Nagji and batons in the hands of Savitaben W/o.
Ramaji Nagji and Shardaben W/o. Swaroopji Nagji and Santaben
W/o. Nagji Kuber. Both the witnesses i.e. P.W.6 and P.W.8 had
informed the complainant that all the seven were beating the
deceased and therefore, they had rushed there to inform him.
3.2 Learned APP has referred to the evidence of the
complainant, which on the face of record itself suggests that he
is not an eye witness and he was informed by two witnesses
P.W.6 and P.W.8 about the incident.
4. The learned trial Court Judge has referred to the evidence
of all the witnesses and has observed that the complainant of
Exh.16 was not an eye witness, while he was deposing the facts
of statement of P.W.6 and P.W.8. The evidence of P.W.6 and
P.W.8 have been analyzed by the trial Court Judge. P.W.6, on
that night, was with his son (P.W.8) and on hearing the shouts,
he went there in the field of the accused. The very specific
evidence was given by both the eye-witnesses that incident had
occurred in the filed of accused. P.W.6 and P.W.8 have referred
to the facts saying that all the accused with the weapons had
assaulted the deceased in their own field. When both the
witnesses had reached their, as per the deposition of P.W.6, the
accused had asked them to leave the place and since they got
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afraid, both of them left the field and had gone to Jayantibhai to
inform about the incident.
5. The learned trial Court Judge has referred to one
complaint given by accused No.5 - Savitaben, on the very same
day, which was registered after the incident, thus, according to
learned APP, the presence of the accused ought not to have been
doubted.
6. We have perused the observations of the learned trial
Court Judge. The said complaint given by Savitaben appears to
have been closed by filing B-Summary. Those documents of the
complaint had not been made part of the prosecution case. The
learned Judge has also observed that the complaint of Savitaben
was registered prior to the present incident, and the fact of the
complaint of Savitaben could not be proved, but could only be
assumed.
7. The learned trial Court Judge has disbelieved the eye-
witnesses, though, the eye-witness stated that the deceased were
beaten by the accused in the agricultural field of the accused,
but said fact could not be proved. According to the complainant
Jayantibhai, between the house of Keshabhai and the field at
which the incident had taken place, there were many houses and
fields. The village is divided into 'Junavas' and 'Navavas'. He had
seen his brothers Keshabhai Arvindbhai during the period of
about 6.00 in the evening. As per the evidence of Arvindbhai,
after having his 'Bidi' on the boring of their farm, Keshabhai had
left the field. Arvindbhai had no knowledge where deceased
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Keshabhai had gone. Witness - Arvindbhai stated that he had
stayed upto 8 O' clock evening on that day at the field, and if any
person has to go to their field, then from the village, they have to
enter the road which is beside the field of Arvindbhai. The
panchnama was drawn and as per the prosecution the field was
of the accused and in the field there was one room and in the
room accused - Swaropnathji and his wife Shardaben both were
staying. That fact was brought on record by the evidence of the
complainant - Jayantibhai. While, under what circumstances
rest of the five accused had gathered there at the field, could not
be brought on record by way of evidence. The distance between
the village and the field is of one kilometer, and there is no
evidence from any of the witnesses of seeing all the other
accused gathering there. The case was placed on record that in
the evening at about 6 O' clock Keshabhai was trying to molest
Savitaben and Savitaben therefore, had given a complaint. After
the incident, if it is assumed that Keshabhai had left the place,
then there would have been all possibility that Keshabhai must
have been beaten at a place other than the field. If that had been
so, then there would have been assumption of involvement of the
present accused, but the learned trial Court Judge has not
found such a fact.
8. As per the evidence of P.W.6 and P.W.8, after informing the
complainant when they came ent back, they did not find the
dead body of Keshabhai in the field, as alleged, of the accused.
While the dead body was found in the filed of P.W.6 -
Versinhbhai. The distance between the field of Versinhbhai and
that of the place of incident was considered and the learned
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Judge was of an opinion that if the dead body of Keshabhai is
taken from the field of the accused to that of the witness, then
there would be signs of bloodstains, but that has not been the
case in the present matter. P.W.2 - Ishwarbhai Waghjibhai Bhati
was examined as a panch of the place of incident and according
to his evidence, on the border of the field of Versinh Dhana,
there was bloodstain earth and bloodstain was also found below
the cot near the room. But the dead body was found in the field
of P.W.6 - Versinhbhai, there is no explanation for that.
9. The learned trial Court Judge, thus, was of an opinion that
had the dead body be taken from the alleged place of incident to
the place where the dead body was found, then if the dead body
had been dragged, then certainly there would have been marks
between the two fields, but neither such marks were found nor
such evidence was recorded in the deposition of the complainant
- Jayantibhai. The panch Ishwarbhai (Exh.18) has very
categorically stated that there was neither blood on the earth
between the fields nor there was any marks of dragging the dead
body.
10. The evidence on record, as per the deposition, had tried to
link the incident with that of the complaint given by accused
Savitaben, which was registered at police station at 11.30 on
20.05.1997 as Cr.No.65 of 1997, and as per the deposition of the
P.S.I. Bhadoriya at Exh.63, he had filed the B-Summary to the
complaint. The learned Judge has observed that the complaint of
Savitaben was registered prior to the complaint of the present
matter. The incident had taken place at 6.00 in the evening,
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therefore, the learned trial Court Judge of an opinion that the
present incident would have been taken place in some another
manner.
11. The observation of the learned trial Court Judge, we found,
was consistent on the record. The eye-witnesses to the incident
P.W.6 and P.W.8 could not be believed since the dead body was
not found at the place, where he has alleged about the incident
of all the accused beating the deceased. The record also clarifies
that there has been some dispute between the eye-witness and
that of the accused with regard to the boring water. Keshabhai
and Arvindbhai both were together at about 6.00 in the evening
and according to Arvindbhai, thereafter Keshbhai had left. He
was not knowing about the place, where he had gone. The
panchas, though have supported the panchnama, but the
panchnama does not disclose about the fact of dead body not
found in the field of the accused, as alleged. Further, the
prosecution could not prove bloodstain earth or any marks of
dragging the body from one field to another. We are of the
opinion that the learned trial Court Judge has rightly
appreciated the evidence on record and has rightly disbelieved
P.W.6 and P.W.8.
12. In the case of Kallu Vs. State of M.P., [(2006) 10 SCC 313],
the Hon'ble Supreme Court held as under:
"While deciding an appeal against acquittal, the
power of the Appellate Court is no less than the power
exercised while hearing appeals against conviction. In both
types of appeals, the power exists to review the entire
evidence. However, one significant difference is that an
order of acquittal will not be interfered with, by an
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appellate court, where the judgment of the trial court is
based on evidence and the view taken is reasonable and
plausible. It will not reverse the decision of the trial court
merely because a different view is possible. The appellate
court will also bear in mind that there is a presumption of
innocence in favour of the accused and the accused is
entitled to get the benefit of any doubt. Further if it decides
to interfere, it should assign reasons for differing with the
decision of the trial court."
13. Thus, we are of an opinion that the appreciation of the
evidence is consistent. The contradiction, which has been
brought on record has been appreciated to disbelieve the
witnesses. The prosecution has failed to prove the fact of dead
body not found at the alleged field of the accused and no
explanation is coming on record as to why and in what manner
the dead body was found in the field of P.W.6 - Desai
Versinhbhai Dhanabhai. The grounds raised by the State in
filing the appeal does not get proved by the evidence.
14. We are of an opinion that no interference is required in the
judgment of acquittal. In the result, the present appeal stands
dismissed. Record & Proceedings be sent back to the concerned
Trial Court forthwith.
(GITA GOPI,J)
(UTKARSH THAKORBHAI DESAI, J)
Pankaj/2
